[Download] "People State New York v. Denis J. Broderick" by Supreme Court of New York # eBook PDF Kindle ePub Free

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eBook details

• Title: People State New York v. Denis J. Broderick
• Author : Supreme Court of New York
• Release Date : January 19, 1965
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 60 KB

Description

In our opinion, this 1964 amendment of section 1943 of the Penal Law has retrospective effect and permits a defendant to move for resentence where the sentence as a multiple offender was imposed prior to its enactment in 1964 (cf. People v. Cornish, 21 A.D.2d 280). The order appealed from refers to the defendant's motion as being an application in the nature of a writ of error coram nobis. That remedy is not available to challenge the validity of a prior out-of-State conviction in a court of this jurisdiction (People v. McCullough, supra ; People v. Wilson, supra ; People v. Cornish, supra). Despite the reference to coram nobis in the order, the defendant designated his motion as one for resentence and the court so treated it in the court's extensive opinion (see 43 Misc. 2d 1014). Accordingly, we deem the order to be one denying defendant's motion for resentence. Such an order is not appealable (People v. Horne, 18 A.D.2d 695; People v. Machado, 18 A.D.2d 1103). We have, nevertheless, examined the appeal on the merits. The court below afforded the defendant a full hearing, at which the defendant was represented by counsel assigned for that purpose. On the basis of: (a) the certified copy of the Nebraska conviction with journal entries, and (b) the defendant's own testimony, we agree with the learned court that defendant failed to establish that he did not knowingly and consciously waive his right to counsel in Nebraska. In our opinion, the contrary is demonstrated by the record. If the order were appealable, we would affirm.

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